Godwin v Swindon Borough Council

Under Civil Procedure Rules rule 6.7(1), the table fixes the deemed day of service for each specified non-personal method. The date is not displaced by evidence that the document was actually received earlier or later.

A claimant who serves a claim form late cannot use the general powers in rules 6.1(b) or 6.9 to obtain, in substance, an extension which rule 7.6(3) does not permit. This is so where the consequence of late service is that the claim is statute-barred.

The claimant, a roadman employed by the defendant council, issued a personal-injury claim form shortly before expiry of the limitation period. The time for service was extended to 8 September 2000. The claimant posted the claim form by first-class post on 7 September, and the defendant received it on 8 September.

The District Judge held that service was deemed to occur later under CPR rule 6.7(1) and struck out the claim. Judge Longbotham allowed the claimant’s appeal, holding that actual receipt rebutted the deemed date. The defendant brought a second appeal.

The central issue was whether actual receipt before expiry of the extended period could displace the rule 6.7(1) deemed day of service, and whether service could alternatively be dispensed with.

1. Appeal allowed unanimously. Lord Justice May gave the principal judgment. Lord Justice Pill agreed with it. Mr Justice Rimer also agreed that the appeal should be allowed, but gave partly different reasons.

2. Per May LJ, CPR rule 6.7(1) creates a fixed deemed day of service for each method in its table. A document sent by first-class post is served on the second business day after posting. Evidence that it in fact arrived earlier cannot advance the day of service; nor can evidence of later arrival alter the deemed date for the purpose in issue.

3. This construction follows from the wording and from the structure of the Civil Procedure Rules. The rule applies to many documents served by the court as well as by parties. Procedural timetables, certificates of service and default-judgment arrangements require a secure and ascertainable service date. Rule 2.8 applied in calculating the period, so a Thursday posting was deemed served on the following Monday.

4. The claimant therefore served after the extended deadline. Judge Longbotham was wrong to treat actual receipt on 8 September as effective service within time, and the District Judge’s strike-out order was restored.

5. May LJ, with whom Pill LJ agreed, further held that rules 6.1(b) and 6.9 could not be used to dispense with service where that would circumvent the restrictive conditions for a late extension in rule 7.6(3). In a limitation case, such an order would in substance confer an impermissible discretionary extension. The court preferred the approach in Anderton v Clwyd County Council to that in Infantino v MacLean on this issue.

6. Rimer J agreed that a serving claimant could not prove earlier actual service to defeat the deemed date. He considered, however, that a recipient could in an appropriate case prove that a document arrived later than the deemed date, or not at all, particularly in relation to default judgment. That qualification did not assist this claimant.

• Court of Appeal: Allowed the defendant’s second appeal in Godwin v Swindon Borough Council, [2001] EWCA Civ 1478, and restored the District Judge’s order.
• Bristol County Court (Circuit Judge): Judge Longbotham allowed the claimant’s appeal from the strike-out order.
• Bristol County Court (District Judge): District Judge Bird struck out the claim on the basis that service occurred on the deemed date under CPR rule 6.7(1).